Police v Bulgin

Case [2010] SASC 143

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v BULGIN

[2010] SASC 143

Judgment of The Honourable Justice White

20 May 2010

TRAFFIC LAW - OFFENCES - EVIDENCE - PROOF OF SPEED

Appeal against dismissal of a complaint charging the respondent with a contravention of r 20 of the Australian Road Rules – Magistrate dismissed the complaint after a voir dire ruling that certificates tendered under ss 79B(10) and 175(3) of the Road Traffic Act 1961 (SA) as statutory aids of proof of the offence were inadmissible.

Whether the finding that a photographic detection device (“speed camera”) was not operated according to operating instructions meant that the prosecution could not tender a statutory aid of proof – whether the prosecution must prove that the speed camera was in proper working order and properly operated at the time of its detection of the alleged offence as a precondition to the admissibility of certificates as statutory aids of proof.

Held: The Magistrate should have concluded that the conditions for the admission into evidence of the statutory aids to proof had been satisfied – the finding that there had been non-compliance with the operating instructions did not preclude the admission of the certificates – the prosecution did not have to establish that the speed camera was in proper working order and was properly operated before it could tender the certificates – the prosecution does have to establish in the substantive trial that the speed camera was at the relevant time in proper working order and was properly operated and, depending upon the other evidence in the trial, may rely upon the statutory aids to proof tendered under ss 79B(10) and 175(3) for that purpose – appeal allowed.

Summary Procedure Act 1921 (SA) s 51; Road Traffic Act 1961 (SA) s 79B, s 175, s 47K; Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Regulations 1999 (SA) reg 50; Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 15, reg 19; Australian Road Rules r 10, r 20; Acts Interpretation Act 1915 (SA), referred to.
Police v Dodd (2004) 88 SASR 130; Llewellyn v Police (2005) 91 SASR 418, discussed.
Police v Siviour (2001) 80 SASR 140; Police v Henwood (2005) 92 SASR 15; Evans v Benson (1986) 46 SASR 317; Ozbinay v Crowley (1993) 17 MVR 176; Fitzgerald v Howey (1996) 24 MVR 369; Williams v Jacobs (1999) 29 MVR 244; Bogdanovski v Buckingham (1987) 46 SASR 317, considered.

POLICE v BULGIN
[2010] SASC 143

Magistrates Appeal

  1. WHITE J: On 7 June 2007, a photographic detection device, commonly referred to as a “speed camera”, detected the respondent travelling at 61 kph on Pine Avenue at Hahndorf. The applicable speed limit was 50 kph. The respondent was charged with a contravention of r 20 of the Australian Road Rules (ARR).

  2. After hearing evidence on the voir dire, a Magistrate ruled that the certificates tendered as statutory aids to proof of the offence should not be admitted…

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Police v Bulgin [2010] SASC 143
Case
[2010] SASC 143
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CaseChat Overview and Summary

In the case of Police v Bulgin, the defendant was charged with a contravention of the Australian Road Rules. The central issue was whether the photographic detection device (speed camera) was operating in accordance with the operating instructions, which was relevant to the admissibility of certificates as statutory aids of proof. The Magistrate had dismissed the complaint on the grounds that the speed camera was not operating according to the instructions, making the certificates inadmissible. The appeal to this decision was taken by the Police.

The legal issue before the court was whether the finding that the speed camera was not operated according to the instructions meant that the prosecution could not tender a statutory aid of proof. Additionally, the court had to decide if the prosecution must prove that the speed camera was in proper working order and properly operated at the time of the detection of the alleged offence as a precondition to the admissibility of the certificates. The court also considered whether the evidential burden of proof placed on the accused was sufficient under the relevant sections of the Road Traffic Act 1961 (SA).

The court held that the findings regarding the non-compliance with operating instructions did not warrant the exclusion of the s 79B(10) certificate. It was determined that the prosecution must prove that the speed camera was in good order and properly operated, but this did not need to occur before invoking the statutory aids to proof. The court referenced previous cases such as Police v Dodd and Llewellyn v Police to support its decision on the evidential burden placed on the accused. The court concluded that the Magistrate's dismissal of the complaint was incorrect and allowed the appeal, setting aside the dismissal and remitting the matter to the Magistrate for further proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In each of Police v Dodd[13] and Llewellyn v Police,[14] a Judge of this Court held that the words in s 175(1) of the RTA providing that an allegation of a specified matter in a complaint is “proof of the matters so alleged in the absence of proof to the contrary” place upon an accused an evidential onus only, i.e., of raising some evidence to the contrary but with the prosecution continuing to have the onus of establishing the matters in question beyond reasonable doubt. Counsel for the Police on the present appeal submitted that I should hold that Police v Dodd and Llewellyn v Police were, in this respect, wrongly decided. I decline to do so. It is not necessary for the disposition of this appeal, as s 175(1) of the RTA has not been in issue. It may be that this aspect of Police v Dodd and Llewellyn v Police will have to be reconsidered, especially as no reference was made in the judgments in those cases to the Full Court decision in Evans v Benson, but it is a neither necessary nor appropriate for that to occur in relation to this appeal.[13] [2004] SASC 91; (2004) 88 SASR 130.[14] [2005] SASC 160; (2005) 91 SASR 418.Conclusion For the reasons given above, I allow the appeal. The Magistrate’s dismissal of the complaint against the respondent is set aside. The matter is remitted to the Magistrate in order for him to complete the hearing of the charge against the respondent in accordance with these reasons.

Ratio Decidendi

Legal Principle Established

In these circumstances, the finding that the position of the speed camera on Pine Avenue, Hahndorf on 7 June 2007 was in breach of the operating instructions of either the police or the manufacturer did not indicate non‑compliance with the requirements of reg 19, and did not warrant the exclusion from evidence of the s 79B(10) certificate on that basis.Good Order and Proper Operation On the appeal, the respondent repeated his submission that proof by the prosecution that the speed camera used in the detection of an offence had been in good operating order and was being properly operated was a condition of the admissibility of a certificate under s 79B(10)(b). He submitted that not only was evidence to this effect a necessary part of the overall prosecution case, it was necessary in order for the prosecution to be able to invoke the statutory aids to proof contained in s 79B(10). This was so, it was said, because unless the camera was in good order and condition, and operated correctly, any photograph which it took could not be said to indicate anything, and therefore would not satisfy the requirement of relevance which is an essential minimum condition for the admission of any evidence. In prosecutions in which evidence derived from the operation of an instrument or device is relied upon, it must usually (absent any statutory provision to the contrary) be established that the instrument or device was at the relevant time in good operating order and condition, and that it was operated correctly. King CJ referred to this requirement in Evans v Benson[5] in relation to breath analysis instruments:A breath analysis instrument can only indicate a blood alcohol concentration if it is in proper order and is properly operated. If an instrument is not in proper order or is not properly operated, it cannot be said to indicate any concentration of alcohol. For that reason it is necessary for the prosecution to prove that the instrument was in proper order and properly operated.[6]Similarly, in Police v Henwood[7] Doyle CJ said:That these matters [proper order and proper operation] can be proved by certificate cannot be allowed to obscure the fact that, in one way or another, it is necessary for the prosecution to prove that the breath analysing instrument was in proper order and was properly operated, before it can prove that a concentration of alcohol was indicated as being present by the breath analysing instrument.[8]However, it is one thing to say that the prosecution must prove the good order and proper operation of a speed camera: it is another thing to hold that it must do so before it can invoke the statutory aids to proof in s 79B(10)(b).[5] (1986) 46 SASR 317.[6] Ibid at 323.[7] [2005] SASC 209; (2005) 92 SASR 15.[8] Ibid at [60]. The respondent submitted that proof that the speed camera was in good order and properly operated must be a condition of the admissibility of the s 79B(10) certificate because, if it was otherwise, the effect of the statutory aids to proof in s 79B(10) would be to impose upon the defendant the obligation to prove that the speed camera was not in good order and properly operated. He noted that s 79B(10) does not contain an equivalent of s 47K(3)(b)(ii) of the RTA which, in relation to breath analysis instruments, requires a certification that an instrument was in proper order and was properly operated to be accepted, in the absence of proof to the contrary, as proof of those facts. The respondent submitted that this indicated that the prosecution was required to prove those matters without the assistance of any statutory aid to proof.